Mukasey, al-Marri, and the Vexing Question of Indefinite Military Detention

Marty Lederman

The Attorney General attracted a great deal of attention last week by delivering an address to the American Enterprise Institute in which he urged Congress to do something about the habeas corpus proceedings that are now underway as a result of the Boumediene decision. That is to say, after ignoring Congress for almost eight years, and insisting all along that detention decisions can accurately and fairly be made by the Pentagon itself, without any judicial review, meaningful adversarial process, or public transparency, the Administration is now all-of-a-sudden desperate for statutory guidance -- just at the very moment, not coincidentally, that the federal courts are beginning finally to make some sense of the whole affair, to address the substantive question of who can be militarily detained, and to provide a semblance of due process to the hundreds of GTMO detainees.

There's very good reason, in other words, why there's no prospect Congress will take up the Attorney General's call before the election: The legislature quite properly thinks that now is the time to give the federal courts a chance to handle the problem deliberately and comprehensively, after which Congress can decide whether it is necessary to supplement the judiciary on any outstanding, vexing questions.

The AG's speech was important, nevertheless, because of what it reveals: for if one looks closely, one can see the areas of real vulnerability for the Administration now that its detention practices are being examined by courts in the cold light of day.

For example, it struck me as odd that the very first thing the AG insists upon as a "critical[]" element of new legislation is a provision prohibiting habeas courts from ordering "that an alien captured or detained during wartime be admitted and released into the United States." Why? If the government cannot demonstrate that the person is an enemy combatant, and there is no way to send the detainee back to their home country (such as in the case of the Uighurs, who would be persecuted if sent back to China), why is it so "critical" that courts not be able to order their release into the United States? [UPDATE: Of course in some cases -- such as where the detainee is a terrorist unconnected to al Qaeda and there is not sufficient evidence to try the person criminally -- release into the U.S. should be foreclosed. But courts are unlikely to issue such orders, anyway, and it's not clear why they should be categorically prohibited from ordering such release, even in cases where there is no established threat of dangerousness.]

The AG also wants Congress to expressly foreclose "challenges to conditions of confinement." As far as I know, there haven't been very many such cases, so again, it's not clear exactly what the worry is. Is the Administration, perhaps, concerned about judicial review of whether, say, its interrogation methods violate the law?

The most important sentence in the AG's speech, however, was a nugget buried deep within it. Strangely, Mukasey urges Congress to "acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations." As one observer has noted, this is a very perplexing request to make as a centerpiece of the Administration proposal, because Congress has already authorized the use of military force against the perpetrators of the 9/11 attacks by a 518-1 vote -- and so to "acknowledge again" the armed conflict would, indeed, be "a bit redundant." The real action, however, is in the next sentence of the speech: "Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations."

What the Attorney General is truly interested in is post-hoc statutory authorization of the Administration's detention policy. Note carefully the breadth of the categories of persons concerning whom the Administration is asking Congress to authorize indefinite military detention:

1. "those who have engaged in hostilities" -- apparently anyone, anywhere, who has engaged in "hostilities" (perhaps only against the United States and its coalition partners, but the AG's speech does not suggest such a qualification), without regard to whether the hostilities were on behalf of al Qaeda or the Taliban, or whether the detainees have any other connection to the 9/11 attacks.

and

2. those who have "purposely supported al Qaeda, the Taliban, and associated organizations."

"Support" for an organization "associated" with the Taliban, on this view, would justify indefinite military detention, without regard to whether the organization or the detainee has any connection to al Qaeda or to the 9/11 attacks, without regard to whether the detainee has committed any hostile acts, and without regard to whether the detainee presents any future risk of violence that would warrant indefinite incapacitation.

This one crucial sentence does, I think, fairly reflect the remarkable breadth of the theory of military detention power under which the Bush Administration has been operating for the past seven years, something I recently discussed in connection with the Parhat case. But if Congress were to codify this definition of "enemy combatant," it would not be "reaffirming" an authority that it has previously provided; it would, instead, be greatly expanding the authority conveyed in the AUMF, and in effect providing post hoc cover for the Administration's substantial overreading of that authority.

The reason Judge Mukasey is so eager for such a statute is that the federal courts are now beginning to call the Administration's bluff on its theory of detention authority. I've already discussed one of the most egregious cases, that of the Uighurs. But even where the government ostensibly "wins" a detention case, the judges ruling on its behalf are at pains to greatly circumscribe the category of persons who may be militarily detained.

A case in point is the extraordinarily interesting and important al-Marri decision that the en banc U.S. Court of Appeals for the Fourth Circuit issued last week. That case involves the question of whether Congress has given the President the authority to order the indefinite detention of someone (i) who resides in the United States; (ii) who was arrested in the United States; and (iii) who was already incapacitated by virtue of being detained within the ordinary criminal justice system.

The court split 5-4 on two distinct questions. Five of the judges held that if the government proves its allegations, then it does have the power to militarily detain al-Marri. One of those five judges, however (Judge Traxler) also joined with the other four judges in deciding that al-Marri was entitled to greater procedural due process protections in the habeas case testing those government allegations.

I have previously explained the principal reason why I think President Bush was not authorized to order al-Marri's indefinite military detention: President Bush "found" that al-Marri "represents a continuing, present, and grave danger to the national security of the United States," and that therefore military detention "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens." This is, in a word, nonsense. Even if everything the government alleges about al-Marri's ties to al Qaeda are true, he did not "represent a continuing, present, and grave danger to the national security of the United States" at the time of the President's order, because he was already incapacitated -- imprisoned -- within the criminal justice system, where his trial was pending. It appears plain that al-Marri was transferred from the criminal justice system to indefinite military detention not for the one reason that justifies such detention (incapacitation), but instead in order to subject him to coercive, possibly abusive, interrogation. (See my previous post, linked above, and page 38, note 19 of Judge Motz's opinion in last week's decision.) If that is correct, then in my view the transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court.

For present purposes, however, what is most important about the al-Marri case is that even the five judges of this very conservative court who ruled in favor of the Administration on the detention question did so based on a theory of detention authority far narrower than that urged (and implemented) by the Bush Administration and reflected in AG Mukasey's legislative proposal. The details are below the fold, but the summary is this:

al-Marri has been understandably advertised as a decision of a hopelessly splintered court. And, it is true, on the precise questions before the court, there were deep splits -- not only as to the precise level of due process that is required in a habeas proceeding of this sort, but also on the question of what the government has to show in order to justify the indefinite administrative detention of a U.S. person interdicted in the United States. This is a very important question, one perhaps even cert.-worthy . . . but it's important to keep in mind that, thus far, it is a question at the periphery of the war-on-terror detention regime, because only two such persons (al-Marri and Padilla) have been detained here in the U.S.

Much more significant than these divisions on the Fourth Circuit, however, is the remarkable degree of consensus on this ideologically polarized court with respect to a much more pressing, more common problem -- namely, the outer limits of the President's noncriminal detention authority where the arrest is made outside the United States. That is the central question relevant to thousands of current detainees, including the hundreds with habeas cases now pending in the District Court in D.C. And on that question, the judges of the Fourth Circuit, ranging across the political spectrum, agreed that the detention authority is much more circumscribed than what the Bush Administration has argued and implemented: Indeed, the most pro-Executive opinion of the bunch, that of Judge Wilkinson, goes so far as to conclude that the Constitution itself imposes significant limits on the detention power -- limits that are necessary lest the political branches "breach this country’s most fundamental values."

The governing opinion by Judge Traxler (joined by Judge Niemeyer) concludes (p.73) that Congress has authorized the military detention of "individuals who are dispatched [to the United States] by al Qaeda, the organization known to have carried out the 9/11 attacks upon our country, as sleeper agents and terrorist operatives charged with the task of committing additional attacks upon our homeland." In other words (p.76), "operatives who associate with the enemy, be that the al Qaeda organization or the Taliban government, "'and with its aid, guidance and direction enter this country bent on hostile acts'" (quoting Quirin).

Beyond that category of persons who are bent on hostile acts under the direction of al Qaeda or the Taliban, Judge Traxler does not further examine the scope of the military detention authority, except to intriguingly hint (p.76) that Congress has not authorized the President to indefinitely detain "a civilian who became sympathetic to al-Qaeda’s mission and sought to support it in indirect ways."

Judge Williams, joined by Judge Duncan, more precisely (p.116) defines "an enemy combatant subject to detention pursuant to Congressional authorizations as an individual who meets two criteria: (1) he attempts or engages in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force." If a detainee does not meet these criteria, Judge Williams concludes, then not only isn't the detention authorized by Congress, but "the Constitution forbids such detention" (p.115).

This is very similar to the conclusion reached by Judge Wilkinson in his remarkable solo opinion. I disagree with important aspects of that opinion that bear on al-Marri's case: In particular, I question Judge Wilkinson's assumption that Congress did not intend to put the government to a higher burden of proof if it wishes to use military detention with respect to U.S. persons who are (i) detained in the United States and who (ii) can be tried for crimes. Our tradition, and that of other nations, is to use the criminal justice system in such cases, lest we give the executive too broad a detention power with regard to domestic activities and persons. Unless and until Congress speaks clearly, I think it fair to assume that the legislature did not intend to depart from this historical tradition in the dramatic way suggested by Judge Wilkinson. Moreover, I think Judge Wilkinson is fundamentally mistaken in arguing (pp. 148-149) that one sufficient reason for transferring such a detainee out of the criminal justice system and into military detention is that it is easier to squeeze information out of a suspect who is held "incommunicado." The very characteristics of such "incommunicado" detention that make it attractive to Judge Wilkinson -- the fear, disorientation and absence of legal assistance that might lead such detainees to reveal valuable intelligence information -- not to mention the severe risk of abusive cruel treatment in such a legal black hole, make this rationale an illegitimate basis for eschewing the criminal justice system, in my view (and I think it's fair to read the Supreme Court as having said likewise in Hamdi). The singular legitimate justification for such detention is to incapacitate dangerous enemies who would otherwise pose a threat to the safety of our troops or citizens.

Those important differences noted, however, I think it is fair to say that Judge Wilkinson's very long and detailed opinion is by far the most thoughtful and thorough attempt by any American jurist thus far to examine the very difficult question of just who may be militarily detained under the AUMF and the Constitution. He makes a valiant effort to construct a "principled [legal] framework" for drawing the important lines between who can be administratively detained and who must be criminally prosecuted, based on careful readings of congressional intent, the laws of war, Supreme Court precedents, and constitutional limits. Even if, like me, you do not agree with Judge Wilkinson's argument in full (see the previous paragraph), he should be applauded for advancing the ball so significantly. Along with the thoughtful alternative views of his colleagues in al-Marri, the recent, grounbreaking Israeli Supreme Court decision on this subject, and Judge Garland's extraordinary opinion in Parhat (which I discussed here), we are now much father along than we ever were pre-Boumediene in finally figuring out just who may be detained, and how far astray the Bush Administration has gone in its indiscriminate, interrogation-based detention policy.

Judge Wilkinson begins with important fundamental premises, largely ignored by the Executive:

While the ability to detain eliminates many of the problems associated with criminal prosecution, open-ended detention is not an acceptable way to conform our historic commitments to liberty to the exigencies of this different kind of conflict. Under the military detention model, the President may detain enemy combatants without trying them in the criminal justice system. This is an awesome power and, as such, must be properly circumscribed. Detainees are not afforded the full protections of the Bill of Rights or the Federal Rules of Criminal Procedure, and the executive’s actions are not subject to the accountability that is inherent in the criminal justice system. To turn every crime that might be tenuously linked to terrorism into a military matter would breach this country’s most fundamental values.

Judge Wilkinson then searches for "a set of criteria that enable us to identify when military detention is a constitutionally permissible option," and finds such criteria predominantly in "traditional law of war principles" that he (correctly) concludes should guide not only our interpretation of congressional intent, but that also, and more fundamentally, "inform our understanding of the war powers in Articles I and II [of the Constitution] and of the enemy combatant category." (In thus suggesting that the laws of war should inform our understanding of the political branches' constitutional war powers, Judge Wilkinson here is sounding a theme similar to that recently pressed by David Golove.)

Judge Wilkinson concludes, in particular, that "traditional law of war principles are consistent with the belief that indiscriminate detention is antithetical to constitutional norms and cannot be tolerated under our system of justice." His discussion thereafter is built upon what he calls "the cardinal principle of discrimination, which seeks to minimize the unnecessary destruction of life and property that results from purposeless or wanton violence." This principle of discrimination "allows warring nations to detain those who do represent a military threat, ensuring that such persons, but only those persons, are removed from the field of conflict. . . . This principle of discrimination is effectuated through the category of 'enemy combatant.' Only 'enemy combatants' may be the intended targets of military force or militarily detained."

Judge Wilkinson then develops the following three-criteria test as a constitutional limit (reflecting also the laws of war as "translated" to this new sort of conflict, as well as presumed congressional intent) on who may be administratively detained as an enemy combatant:

[T]the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization.

As I've explained above, I think that there are other limits, as well, at least for those persons detained in the United States who may be incapacitated within the criminal justice system. But even if we were to limit ourselves to Judge Wilkinson's three-part test, it is easy to see why that test provides a much more circumscribed authority than that the Bush Administration has exercised and Judge Mukasey has asked Congress to codify:

The first criterion, the membership requirement, distinguishes those who are the enemy "from those who merely sympathize with the enemy." The second criterion ensures what Judge Wilkinson describes as "a significant political check": Although it "recognizes that Congress may authorize the use of military force against nonstate actors, such as terrorist organizations," it also "appropriately excludes from the category of 'enemy' those persons or groups against whom Congress has not authorized the use of military force." "For certain," Judge Wilkinson emphasizes, "there are many individuals and organizations engaged in unlawful conduct, and even terrorism. But most of these individuals and organizations have nothing to do with al Qaeda, its affiliates, or the September 11 attacks. Under this criterion, such persons would not be eligible for military detention under the AUMF. This is . . . appropriate in light of the constitutional imperative that military detention be the exception and not the rule." (Judge Wilkinson emphasizes, appropriately, that such persons may, of course, be punished for their violent conduct in the ordinary criminal justice system.)

Most important, perhaps, is the third Wilkinson criterion:

If the first two criteria address who in modern warfare is the enemy, the third criterion addresses who is the combatant. Historically, this distinction has separated those with military aims from those who do not present a threat to opposing forces. Though yesterday’s soldier has been replaced, at least in part, by those who eschew the conventions of lawful warfare, the purpose underlying this distinction remains unchanged. In light of today’s realities, a "combatant" is a person who knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization. Like the first two criteria, this requirement closely tracks the relevant traditional law of war rules.

Under this criterion, those who use military-like force against American soldiers or civilians obviously qualify as combatants. Similarly, members of an enemy sleeper terrorist cell that have taken steps, even if preliminary in nature, toward an act of destruction are also considered combatants. Conversely, persons traditionally considered civilians, such as members of the enemy organization who do not possess hostile or military designs, are non-combatants and may not be detained by the military. This includes persons who would clearly be non-combatants, such as a "physician who treated a member of al Qaeda," because they intend no harm to persons or property. Such persons would not be subject to military detention.

If these three criteria were to be applied, it would mean that the Bush Administration lacks authority for the military detention of a great number of its detainees -- not only those it has already released, but also many of those remaining at GTMO, at Bagram, and elsewhere. For example, as I've discussed with respect to the Parhat case, the Bush Administration has detained several Uighurs for more than six years, even though such persons are not even affiliated with, let alone members of, the governments and organizations that Congress identified in the AUMF. They, and many other detainees, do not even satisfy the first two of the Wilkinson criteria. As Ben Wittes points out in his new book Law and the Long War (see pages 79-80), even on the government's own explanations of the detainability of the GTMO detainess, the majority of such prisoners are not members of al Qaeda or the Taliban, let alone members who have engaged in or planned belligerent actions: ""Ultimately, the government labeled more than twice as many detainees as associated with the groups than it branded as 'members' of them--and it branbded almost four times as many detainees 'members' as it did 'fighters.'"

A significant number of other detainees might even be members of al Qaeda or the Taliban, but have not "knowingly plan[ned] or engage[d] in conduct that harms or aims to harm persons or property for the purpose of furthering [al Qaeda's or the Taliban's] military goals." Those detainees would not satisfy the third Wilkinson criterion.

The Administration's policy and practice has been, in effect, to track the rationale in John Yoo's war powers opinion of September 25, 2001, which asserted the power of the President to disregard any limitations or limited authorizations contained in Congress's AUMF: Under the theory of that opinion, the Bush Administration has asserted and exercised the power to indefinitely detain any persons who the Executive branch has determined to be a terrorist threat of any sort (without regard to membership in al Qaeda or the Taliban) -- to (in Yoo's words) "reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks" -- or who are "affiliated with" terrorist organizations in virtually any indirect way. Such is the inevitable, indiscriminate result of a detention policy designed to procure actionable intelligence from any potential source, rather than one designed to incapacitate the command and control structure of a legislatively identified enemy.

Judge Mukasey is now asking Congress to ratify this policy -- to allow indefinite detention of anyone who has "engaged in hostilities" and of anyone who has "supported" not only al Qaeda and the Taliban, but all (undefined) "associated organizations," as well.

But not only has Congress not previously authorized such a vast power -- if Judge Wilkinson and his quite pro-executive colleagues on the Fourth Circuit are to be believed, it would be unconstitutional to do so.

Yes we are in the ratification of past abuses mode and I fear that democrats and republicans will find a way to acquiesce in this because the persons on which all this is happening are foreigners and - to be frank - none of our politicalleaders give a hoot about foreigners we detain.Best,Ben

I have to think that, policy angles aside, a side effect of this administration's accelerated (accentuated?) hiring of Regent and Ave Maria graduates has given them a framework within which "forgiveness" is a moral imperative.

This is ultimately a mirage -- the only lawful authority for indefinite military detention under the laws of war is art. 4 of Geneva III POWs, PERIOD. Judge Wilkerson's three-part test amounts to nothing more or less than an accusation that someone is guilty of a federal offense pursuant to 18 USC 371 etc, and under the both the Constitution and the laws of war, one can only be convicted of a crime by due process of law and a fair trial. Conversely, depriving someone of due process or a fair trial is a WAR CRIME in and of itself, prsuant to 18 USC 2441(c)(2) as it refers to Hague IV 1907 Annex art. 23[h].

Charles: The authority is not *under* the laws of war, which don't speak directly to detention in this sort of armed conflict. It's detention pursuant to the AUMF, interpreted in a manner *informed by* the laws of war. Thus, I think Wilkinson's basic framework is correct, even though I disagree with him on some of the particulars.

Well the laws of war apply to all armed conflicts. The AUMF didn't change those laws, and whether it authorizes the detention of "enemy combatants" is beside the point: the administration denies that any of these prisoners is a POW, and that's the only lawful basis for indefinite detention as an enemy combatant. What's that leave?

The AUMF did not and could not nullify the Constitution or the Laws of War. They can either prove their accusations or they can't. Under the Constitution, their burden is both clear and inescapable.

Anyone who claims otherwise needs to explain why Mr. Bush could not properly order a two-year-old girl from Omaha detained as an enemy combatant on exactly the same basis he claims to be able to hold the prisoners at Gitmo.

The Attorney General attracted a great deal of attention last week by delivering an address to the American Enterprise Institute in which he urged Congress to do something about the habeas corpus proceedings that are now underway as a result of the Boumediene decision. That is to say, after ignoring Congress for almost eight years, and insisting all along that detention decisions can accurately and fairly be made by the Pentagon itself, without any judicial review, meaningful adversarial process, or public transparency, the Administration is now all-of-a-sudden desperate for statutory guidance -- just at the very moment, not coincidentally, that the federal courts are beginning finally to make some sense of the whole affair, to address the substantive question of who can be militarily detained, and to provide a semblance of due process to the hundreds of GTMO detainees.

Congress and the President negotiated and enacted the DTA and the MCA, which ratified the traditional historical role of the military in identifying enemy combatants and expressly ordered the Courts not to arrogate that role for the first time in Anglo American history. The President and the military followed Congress' rules for captures in this legislation. It was the Bumediene Five who ignored Congress's Article I powers twice.

Judge Wilkinson then develops the following three-criteria test as a constitutional limit (reflecting also the laws of war as "translated" to this new sort of conflict, as well as presumed congressional intent) on who may be administratively detained as an enemy combatant:[T]the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization.

While he is correct that the military should be bound by the laws of war and Congress' rules for captures, Judge Wilkinson's three part test betrays a lack of knowledge of those laws.

1) Neither the laws of war or Congress' own rules for captures require that Congress first declare war against an enemy before the military may capture and detain members of an enemy nation or organization which is already at war against the United States.

Historically, the United States has engaged in dozens of undeclared wars against enemy nations or irregular organization and as a result captured and detained members of the enemy for the duration of those conflicts.

Moreover, Judge Wilikinson's suggested test in combination with the Geneva Conventions creates a Catch 22 benefiting the enemy. Under the GCs, an enemy which complies with the GCs and attacks our troops or another military target, that enemy must be held as a privileged POW and may not be tried by courts as common criminals. However, under the Wilkinson test, until the Congress declares war, the military may not capture and hold the enemy as POWs and can only try them as common criminals. Thus, so long as the enemy does not commit war crimes, it can war against the United States at will and not be subject to military capture until Congress declares war.

2) Further, Judge Wilkinson is incorrect to limit detention to combat arms personnel. The laws of war and Congress' rules for captures have always permitted the detention of anyone who provides support to the enemy. That includes military combatants, military support personnel and yes civilians who provide economic or other support to the enemy war effort.

For example, in the World Wars, we lawfully detained German soldiers, German military supply personnel and German civilian sailors who moved supplies for the enemy.

The laws of war enabled our military to detain al Qaeda combatants, al Qaeda support personnel who raise money, purchase weapons and provide safe houses, as well as civilians whom we cannot prove are al Qaeda members who still provide the same type of support for the enemy as do the members.

The inconclusive and often incorrect mess of opinions by the 4th Circuit is a perfect example of the reason why the Boemediene decision is awful policy as well as unconstitutional.

The most important sentence in the AG's speech, however, was a nugget buried deep within it. Strangely, Mukasey urges Congress to "acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations." As one observer has noted, this is a very perplexing request to make as a centerpiece of the Administration proposal, because Congress has already authorized the use of military force against the perpetrators of the 9/11 attacks by a 518-1 vote -- and so to "acknowledge again" the armed conflict would, indeed, be "a bit redundant."

I've already noted this curious request and posted my take on it here (see "Update"). In short, I think this is lawyerese to establish a "state of war" so as to be able to claim that such state exists as a defence WRT maladministration-santioned actions. There's something(s) they're doing (and continuing to do) where they want to whip out the "we're at war, dontcha know..." rationale, and hope that proves persuasive for some court somewhere. Perhaps in continued detention of prisoners, perhaps in other "exigent" powers....

Art 82 and 87 impose UCMJ discipline on the enemy who are already POWs the same way it applies to our troops.

Art. 99 covers war crimes.

My scenario assumes the enemy is following the GCs and other laws of war. So long as the enemy does so and Congress has not declared war, the suggested Wilkinson test forbids our military from capturing and detaining the enemy.

"Bart" says that the "Boemediene" [sic] decision is "unconstitutional". The U.S. Supreme Court disagrees. Guess who wins. For that matter, guess WTF cares that "Bart" thinks the U.S. Supreme Court is "unconstitutional"....

Just one small favour, "Bart": If you have to emit such "opinions", please label them as such, and put in a disclaimer that the highest court in the land disagrees and that any serious lawyer would get laughed out of court (if not sanctioned by the court or bar) if they proffered such opinion as good law in open court.

["Bart"]: Under the GCs, an enemy which complies with the GCs and attacks our troops or another military target, that enemy must be held as a privileged POW and may not be tried by courts as common criminals.

["Bart"]: Art 82 and 87 impose UCMJ discipline on the enemy who are already POWs the same way it applies to our troops.

Strange to say, GC3 says nothing about the UCMJ. Read it and weep, "Bart".

["Bart"]: Art. 99 covers war crimes.

And other crimes. Here it is:

Article 99

No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Poweror by international law, in force at the time the said act was committed.

Notice the "or" there. Acts that were criminal under the laws of the detaining power can be prosecuted (see the prior sections too).

The reason that POWs can't (in general) be tried in civilian court (or, as "Bart" disingenuously labels it, as "common criminals") is not that the Geneva Conventions prohibit such, but rather that the UCMJ specifies courts martial for our soldiers similarly situated (although prosecutions of soldiers in civil courts has taken place as well, so that any "enemy" POWs that had allegedly committed similar acts under similar circumstances would be in the same boat).

When an enemy soldier enters the US out of uniform for the purpose of committing sabotage, then the laws of war allow the US to try this spy in civilian criminal court for any crimes he commits on US soil and also to detain him in military custody and optionally to try him in military court for the offense of crossing lines out of uniform. Contrary to the post, there is no historical evidence that the US or any other country prefers criminal prosecution to military detention and prosecution. In all the usually cited cases (Captain Nathan Hale 1776 tried by British military, Major John Andre 1780 tried by court appointed by George Washington, Huber Haupt one of the ex parte Quirin spies) the US and Britain chose military detention and trial.

Regularly we see prisoners who have been convicted and sentenced in one jurisdiction transferred for trial in another state or to Federal courts to be tried for other crimes in other jurisdictions. Even when a prisoner is actually secure, there is no rule that incarceration bars access by other jurisdictions.

However, al Marri was not secure. He could have been released on bail at any time. If he had been tried on the bank fraud charges and then been released on a suspended sentence for deportation, or even worse released because the evidence against him was suppressed, and then the government put him in military detention, you would have objected even more loudly.

Rather than playing games with the timing, the government moved immediately when they had evidence that al Marri was an enemy combatant. It was a simple and automatic application of superior jurisdiction.

Whatever three part definition you prefer for "enemy combatant", Justice Kennedy in Boumediene reminds us that as Eisentrager pointed out directly, wartime military detention is not limited to enemy combatants but also applies to enemy civilian nationals. Enemy citizens who also have US citizenship or who are in the US legally are entitled to the protection of US courts through habeas. Nothing here justifies the terrible decision of the US to detain not enemy citizens, but persons of Japanese ancestry during WWII. However, an alien German citizen civilian, even one legally in the US, could be detained for the duration of WWII without any criminal charge, simply because of his German citizenship. Certainly Americans travelling abroad were detained at the start of the war by Axis powers.

Of course, the military should not detain little old German ladies visiting their grandchildren. The purpose of wartime detention of civilians is to hold those who pose a security threat. That said, existing case law is not inconsistent with a view that the choice of who is and isn't a security threat may be either an exclusively executive decision or one that is subject to only the most lax judicial review.

Of course, al Qaeda isn't a nation and does not have citizens, so the definition of "enemy alien" in this conflict is an unresolved matter. Even if you insist that al Marri (who was a soldier in Afghanistan after they declared war on the US but before the AUMF was passed) is a civilian, it is still possible that he would be classified and an enemy alien along with Hamdan and a few other cases. International law is a lot more complicated than any one set of rules for one particular classification.

For example, international law only requires that one side declare war and initiate belligerent acts (like the USS Cole). At that point there is a state of war in international law even if the US decides to ignore it and doesn't pass the AUMF until years later. The only thing that is clear is that the US has been engaged in a military conflict for seven years while the courts are still arguing about whether it really is a war, don't know when it started, and can't define who the enemy is.

1) Art 82 and 87 allow the detaining power to use he laws used for the discipline of its own military on POWs. In our case, that would be the UCMJ.

2) All crimes which are committed by combatants during war are war crimes.

In any case, you are offering red herring arguments.

Once again, my assumption is that the enemy are not committing war crimes and thus cannot be arrested and tried as criminals. Rather, they are waging lawful war against the United States.

Under this scenario, the GCs forbid the US from capturing and detaining the enemy as criminals and Judge Wilkinson would forbid the US from capturing and detaining them as POWs until Congress declares war.

Do you or anyone else here agree with the Wilkinson approach? If so, why?

Arne: I don't know how many times I have to say this: The extensive rebuttals from you and others to each and every one of Bart's statements -- *even if the rebuttals are substantively meritorious* -- render the comments section unreadable, and deter others from engaging in serious discussion about the issues in the post. The comments section, believe it or not, is not designed to be about Bart DePalma. If you think Bart is wrong about things, please *ignore* him, or discuss it with him in another forum. Thanks

Howard: You write that "there is no historical evidence that the US or any other country prefers criminal prosecution to military detention and prosecution" with respect to persons detained on domestic soil but not on a traditional battlefield. Yet you acknowledge that "in all the usually cited cases (Captain Nathan Hale 1776 tried by British military, Major John Andre 1780 tried by court appointed by George Washington, Huber Haupt one of the ex parte Quirin spies) the US and Britain chose military detention *and trial.*"

I'm actually very interested in this historical question: Is there any tradition in the U.S. of militarily detaining such persons indefinitely -- persons who could (unlike enemy resident aliens under the AEA) be tried for domestic offenses or war crimes or spying -- *without* a trial? I genuinely don't know the answer to this, and think that this tradition would be relevant to the question of congressional intent (and constitutional limits) here. Thanks

The extensive rebuttals from you and others to each and every one of Bart's statements -- *even if the rebuttals are substantively meritorious* -- render the comments section unreadable

Marty, I don't know how many times I have to say this: It isn't the rebuttals of Bart's propaganda that make the comments section unreadable, it's Bart's propaganda that make it unreadable. If you're not going to do anything about the propaganda, you really need to stop whining about the people who respond to it. Or maybe you could whine about it on another blog?

I'm actually very interested in this historical question: Is there any tradition in the U.S. of militarily detaining such persons indefinitely -- persons who could (unlike enemy resident aliens under the AEA) be tried for domestic offenses or war crimes or spying -- *without* a trial? I genuinely don't know the answer to this, and think that this tradition would be relevant to the question of congressional intent (and constitutional limits) here. Thanks

The law of war permits a combatant to detain the enemy for the duration of the conflict. All conflicts (including the one against al Qaeda) have finite lengths. Except to the extent that it is referring to the inability to know in advance the length of a conflict, the term "indefinite detention" is not an accurate term to describe POW status. Rather, it is more accurate to ask whether the United States has a tradition of having the military detain a war time enemy for up to the duration of the conflict? The answer to that question is yes.

The question you appear to be searching for is whether there is any US precedent of wars which exceed the expected lifetimes of the POWs. The answer to that question is obviously no.

However, I doubt that the war with al Qaeda will provide such a precedent. The United States has largely destroyed al Qaeda in the past six years and released the vast majority of al Qaeda prisoners as no longer dangerous.

The initial fears of the war against al Qaeda reaching multi-generational length appear to be vastly overstated. Rather, this war appears to be like the on and off wars between 1801 and 1815 with the Barbary Pirates.

Can you not see how the Parhat decision/context renders your argument that the war against al Qaeda is finite? The fact that Mukasey wants Congress to "reaffirm" that the US may indefinitely detain people that supported groups associated with al Qaeda further undercuts your argument.

The fact of the matter is that the Administration is looking for broad language so that they can create an open-ended grant of authority, versus having to go back to Congress for additional legislation. Stated otherwise, they are looking for an indefinite state of war.

Within the bounds of the rules set by Congress pursuant to their Article I power to set rules for captures, the President already has the authority as CiC to detain the enemy for the duration of the conflict.

The AG is hardly looking for an indefinite state of war.

What the AG is asking is for Congress to once again exercise its express Article I power to set rules for captures to place limits on the Courts attempts to set their own rules for captures. Even if the Dem leadership would allow a vote on such a bill (which given their obstructionism on other bills like the FISA reform is unlikely), I foresee the Boumediene Five ignoring Congress once again as they did the DTA and the MCA.

While I like the analysis and the beginnings of an attempt to define the enemy and detention practices, the truth is, one should be asking, "Who's 'traditional' laws of war?" This is not new territory, the 1977 Additional protocols addressed these issues with much more thought and completeness than Judge Wilkerson. Doug Feith was instrumental in seeing that they not be ratified by the U.S., a condition that produces the situation that Marty Lederman is now happy to see finally addressed. That seems disingenuously like American exceptionalism in the small.

Article 43 of the 1st Additional Protocol details who may be considered a combatant, Article 44, their treatment, which is in accordance with a prisoner of war, even if not entitled to prisoner of war status. It' Doug Feith's wacko idea that the Geneva Conventions are to be used as an incentive program on qualifying as a human being that are the root of these problems. They are not an incentive program, their goal is to limit inhumanity.

It's totally ludicrous and very self centered of Americans to act as if we are visiting novel legal territory in the laws of war, when what is really happening is we are playing with the creation of places with no law, and people below the law, on issues that were negotiated long ago, and have a history of thought we just don't want to recognize.

It's a lot worse than ludicrous and self-centered: it's fraudulent and criminal. The United States played the leading role in the development of the existing laws of war, starting with the Lieber Code in 1863 and continuing with Hague, Geneva 1929, the IMT Charter in 1945, and Geneva 1949. There's nothing new about any of this, and these people are nothing but liars, frauds, and WAR CRIMINALS.

No, Bart, they were not devised as incentive programs. The initial impetus for the Geneva Conventions was the Battle of Solferino, and the inhumanity seen there by Henri Dunant, who agitated for the first convention which was in 1864.

It wasn't very many years later, in 1872, that they went looking for a means of enforcement, and Gustav Moynier, at the time Dunant's partner, first proposed what is now the International Criminal Court. That was to be the incentive. The Conventions themselves are to prevent inhumanity and establish a base for behavior in war based on essential human dignity.

The idea of using the Conventions as an incentive is Feith's and others' reasoning for rejecting the additional protocols in the 1980s under Reagan, who had collected not a few of today's neocons under one roof.

It is true that prisoners were denied full rights (under the 1929 conventions) by countries, but that was because their country hadn't signed. All countries have now signed and ratified, Timor-Leste being the last in 2003.

You correctly point out the "loophole" the administration has been trying to use. In Quirin the Supreme Court said that enemy saboteurs could be detained by the military just as captured soldiers are, and in addition they were subject to military trial for their unlawful belligerency. The administration believed that they could choose not to prosecute and thus avoid any type of trial, military or civilian. Hamdi and al Marri made it clear that detention without military trial could be challenged by some unique form of habeas proceeding whose bounds, format, and rules remain to be determined.

There is no history nor any legal argument for civilian trial of military spies and saboteurs. There is also no history before the current conflict of simple detention without a military trial. However, prosecutorial discretion means that you cannot force the executive to press charges.

Given the confusion in the al Marri decisions and the complete lack of guidance after al Marri and Boumediene, some intelligent, bipartisan congressional legislation that realistically considers the legal issues and constraints without left or right wing ideology would be helpful. Since we obviously cannot get such legislation, it is not clear that congress can play any useful role, and the courts will have to stumble through this on their own.

"In Quirin the Supreme Court said that enemy saboteurs could be detained by the military just as captured soldiers are, and in addition they were subject to military trial for their unlawful belligerency. The administration believed that they could choose not to prosecute and thus avoid any type of trial, military or civilian."

That is not accurate Howard. The Quirin saboteurs were put on trial -- the reason for the military commission was to suppress the evidence, fix the verdict, and impose the death penalty instead of the fifteen year maximum sentence under federal law at the time.

Arne: I don't know how many times I have to say this: The extensive rebuttals from you and others to each and every one of Bart's statements -- *even if the rebuttals are substantively meritorious* -- render the comments section unreadable, and deter others from engaging in serious discussion about the issues in the post.

While it may be true that the "last clear chance to avoid" is mine, that's hardly an indication as to the culpability for such distractions. The comments section would indeed be clearer if Mr. DePalma was limited to making an assertion once, rather than doing so repeatedly in every "suitable" post, and then ignoring substantive objections to his commenting only to begin anew in the next post on the subject as if no one else had said anything. That is not "discussion"; that is providing Mr. DePalma with an audience he has not merited through his own work, and on a blog that he hasn't established on his own merits (for good reason).

I realise that he will not quit his misbehaviour, and that you believe that your only option is to ask others who are at least responsive to your pleas to refrain instead. But this is not your only remedy, either technically or ethically.

In deference to your wishes, I deleted my last two comments subsequent to your request.

But I still maintain that the root cause of the issue lies in a failure to establish ground rules for productive discussion and to enforce them. Glenn Greenwald, as fervent a believer in the virtues of full discussion as anyone, did such reluctantly, and banned certain posters or limited them to a single comment per post, as the extent of the transgressions warranted, and that has led to more genteel commenting there. And for the remaining bickering (which always crops up), an occasional plea by him to the remaining participants -- less refractory to his requests -- serves to keep such remanent fluff down.

In short, you need to request that "Bart" behave himself ... or ban him. He is the primogenitor of the devolvement of the comment sections here.

Arne, Bartbuster: It doesn't matter who is more "culpable," what the "root causes" are, or who is the "primogenitor" of the fact that our comments section is unreadable. Fact is, Bart evidently thrives on driving you guys nuts, and on instigating his own little website here in the comments. If everyone ignored him, he'd have a lot less incentive to post the same points repeatedly. And, of course, there would be far fewer comments responding to Bart -- comments that detract from a productive comments thread and deter others from posting.

I don't know whether there's any technological way to block certain posters, but in any event it's Jack's blog, and he has -- quite legitimately -- decided that we're not going to get into the censorship business here in the comments. And we certainly don't have the time or inclination to police particular comments. That's why my remedy, from time to time, is simply to turn off the comments section on my posts.

So, it's up to all of you. If you think it's a good thing that the comments section is read by six or so people who know each others' arguments by heart, by all means continue. But I, for one, think that's a very unfortunate thing. Therefore I've asked you to show some restraint repeatedly. That would be the polite, not to mention productive, thing to do. But it's your call.

If everyone ignored him, he'd have a lot less incentive to post the same points repeatedly.

With all due respect, sir, I don't think you are familiar with the behaviour of such trolls as "Bart". I've been dealing with them for close on two decades now, and they won'tshutup (particularly when you give them the 'exposure' they are looking for). You should note that "Bart" spews his stuff regardless of what people say or don't say (and this is par for the course for such as him). You should also note that "Bart" ignores me for the most part (and for good reason; he brooks no criticism, and particularly that for which he has no ready 'answer'), so that there's no 'endless back and forth' there.

I don't know whether there's any technological way to block certain posters, but in any event it's Jack's blog, and he has -- quite legitimately -- decided that we're not going to get into the censorship business here in the comments. And we certainly don't have the time or inclination to police particular comments. That's why my remedy, from time to time, is simply to turn off the comments section on my posts.

As I said, Glenn Greenwald -- (who has notoriously defended in court the most vile 'free speech' ... which is the stuff that all us First Amendment aficionados know is the stuff that needs defending) -- is also quite pro-"free-speech", but has managed to reconcile himself with the fact that his own blog is his, and he can set limits on who can (ab)use it ... which policy has included banning "Bart"; something that you folks should chide him for because it drove "Bart" over here.... You can police individual comments without any effort; we do it ourselves in deleting our own comments, and as a blog administrator (one entitled to create posts), you ought to be able to delete those of others as well, should you be so inclined. I've done it on my blog, principally for the ad spammers, but I reserve the right to do it for others as well (including family members if they post inappropriate material).

I don't know exactly how to do so, but I believe you could have Blogger ban certain IPs as well.

The solution is not hard to find.

But you haven't even taken the first step; the one that Glenn gives before bringing the hammer down: Which is, to ask the offender to refrain from multiple postings about the same damn thing ... and to limit themselves to one comment per post if they are simply saying the same thing over and over again. I know that "Bart" probably won't listen to such a request ... but I haven't seen you even ask.

The problem with your theory that I am somehow motivated by the response of others here is that I direct most of my posts on your threads toward your lead post and follow ups even though you decline to respond, while I largely ignore the likes of arne and bb despite their near hysterical spamming aimed at me.

However, I will do my best to completely ignore arne and bb in the future and would be immensely pleased if they follow your advice and reciprocate.

My personal opinion is that you are making a litmus test for humanity, and that is definitely not the intent of any humanitarian movement, most especially that embodied by the ICRC (the IHL movement). The point is to make an inhumane situation as humane as possible. Everything is so arranged, the strict secrecy in communicating with governments, the structure of the visits, the registrations, the rights of prisoners and civilians, the international social services like tracings, even the allowed markings, all of it.

For instance, the point of the markings (uniform, signs, bearing arms openly) is not some test to earn POW status, it is to make it possible to distinguish between civilians and military so that weapons can be directed at military targets only.

The disincentive for not doing what is laid out in the Conventions is to be tried for war crimes, not to be deprived of humane treatment during internment. The reason I linked it back to Feith is because the disenfranchising people of their humanity is to him the ultimate expression of the inner truths of the Conventions. He's quite proud of keeping the additional protocols from ratification by the U.S. as a result, and what we are going through now is a consequence: those protocols were intended to clarify precisely situations like these. Maybe you agree with Mr. Feith. Personally, I find his beliefs to be insane. The last thing Geneva is supposed to provide is unlimited inhumane detention, and a cheap way to abrogate human rights by claiming that membership in a class denies people the right to their own humanity.

Most of the precedents which are batted around relating to detention go back to World War II because, fortunately, the USA has until recently been able to say that the breadth of the oceans between the continental USA and the trouble spots of the world made it a lot more secure than it proved to be on the sad day of September 11th.

Likewise the 22 miles of the Channel long gave the English the conviction that their island status (“this precious jewel set in a silver sea”) entitled them to more comprehensive liberties than mere continentals. Not for us the carrying of ID cards, or the answering of impertinent questions from law enforcement:

Policeman: “What are you doing here, Sir?” Citizen: “Going about my lawful occasions and observing the Queen’s Peace.” Unspoken: “If you detain me without probable cause, there will be a suit for damages.”.

Habeas Corpus, the most effective remedy known to the common law, has not always proved that effective in wartime because of the willingness of Courts to be very deferential in times of great national emergency.

Just as a low point in the history of US judicial review of executive action was reached with the WW2 interment of US citizens of Japanese ancestry in Korematsu v. United States and a like low point was reached in the UK with the decision on internment in Liversidge –v- Anderson [1942] A.C. 206 – with however the celebrated dissent of Lord Atkin who spoke caustically about “judges who show themselves more executive minded than the executive” - a dissent which Lords Diplock and Scarman held to be controlling in R –v- Inland Revenue ex parte Rossminster [1980] A.C. 952.

The shock of 9-11 affected the judiciary as well as the public and it was to be expected that the judicial branch would wish to proceed slowly, incrementally and showing all proper deference to the Executive for fear of treading into territory the courts are ill-equipped to analyse.

The Supreme Court appears to be reluctantly coming to the conclusion that the Executive has not been acting in good faith – hence the extraordinary AG Mukaskey appeal to Congress for retroactive legislation.

Will the Courts now need to grasp the real nettles: can there be a “war” on terror, or are there only war/hostilities between states? Is the fight against terrorism more properly for law enforcement than for the military? If there were hostilities between the USA and Afghanistan and Iraq, are not both wars now over? Can there be indefinite military detention without trial in the name of the so-called “war on terrorism”.

We in the UK now have a special jurisdiction for imposing civil restrictions on suspected extremists stopping short of imprisonment (but only just), the notorious ‘control orders’ under the Terrorism Acts. They can be made against citizens and non-citizens and they are yet to be fully tested in the European Court of Human Rights.

What is amazing is that it was the determination of the Executive to evade all forms of legal review of detention that has caused the problem. Had the USA gone into Afghanistan with the benefit of a UN Security Council Resolution under Chapter VII, it would have routinely provided for discretionary internment under military authority and in humane conditions of all persons deemed to pose a risk to peace and security for the duration of the emergency and subject to 6 monthly reviews of the continuing need to detain. That is a procedure our Courts have found acceptable and US courts might have done so too.

One gets the impression that the patience of the judicial branch has been pushed beyond the limit and that the Executive might not much like the responses they may get – so perhaps both sides are hoping for a fudge once a new administration takes office.

["Bart", to Prof. Lederman]: The problem with your theory that I am somehow motivated by the response of others here is that I direct most of my posts on your threads toward your lead post and follow ups even though you decline to respond, while I largely ignore the likes of arne and bb despite their near hysterical spamming aimed at me.

As I was saying.....

However, I will do my best to completely ignore arne and bb in the future and would be immensely pleased if they follow your advice and reciprocate.

Of course. He'd be more that glad not to have anyone point out the infirmity, hypocrisy, illegality, amoralty or outright falsity of his comments. "Bart" thanks you, Prof. Lederman, for providing him his "forum" unchallenged; he couldn't do it without you, and he doesn't even have to do the work of establishing a blog that anyone would boher to read.

But he will not stop his spamming his repeated "talking points" every chance he gets. Something that ought to be as clear as -- well, say, the preznit's Article II powers to torture -- by now.....

I maintain your approach, Prof. Lederman, simply ignores the nature of the beast.

At the very least, when "Bart" starts getting his keister slammed real hard in a thread, he "bravely turns his tail and [runs]" on to the next one.

One gets the impression that the patience of the judicial branch has been pushed beyond the limit ...

That's pretty much my impression too -- after thrice telling the maladministration they've gone off the deep end. But the maladministration is refractory to such opinions from the Supreme Court of the U.S., just as much as is "Bart" ... perhaps they think that what the U.S. Supreme Court has said is ... well, "unconstitutional" (to use "Bart"'s language from above). Which removes the subject matter from the purview of a legal blog.

On the vexed subject of Bart, I'm as guilty as all the other who feel obliged to respond to some of Bart's more vexatious comments.

In expressing your desire for restraint, you might care to remember that this blog is extensively read outside the USA in other common law jurisdictions not least by students because of the the academic distinction of most of the contributors.

Bart is, alas, an attorney and many readers might think his posts have some importance. If the policy is non-censorship, then that should apply to all - but as a practical matter, could not Bart's first post on any thread be followed by some kind of 'health warning'.

Despite the warnings on the packs, I still smoke far too much - but at least I am aware that I am inhaling some noxious substances.

For instance, the point of the markings (uniform, signs, bearing arms openly) is not some test to earn POW status, it is to make it possible to distinguish between civilians and military so that weapons can be directed at military targets only.

We are getting closer to agreement.

The end being sought in encouraging combatants to identify themselves as such is to protect the civilian population, not to achieve POW status as if they were learning a special handshake for a fraternity.

Rather POW privileges are the incentive to engage in the behavior of identifying oneself as a combatant with the purpose of protecting the civilian population.

The disincentive for not doing what is laid out in the Conventions is to be tried for war crimes, not to be deprived of humane treatment during internment.

Humane treatment is a minimum standard for all prisoners and is not a POW privilege. GCIII, Art 3(1). You simply have a disagreement as to what constitutes humane treatment.

However, I would also note that the war crimes disincentive against disguising oneself as a civilian is not particularly effective against terrorists for two reasons:

1) The entire business of terrorism is to commit gross war crimes against the civilian population. An additional charge of operating in civilian clothes is small change.

2) At the other end of the scale, dressing in civilian clothing and lying about being a civilian gives the terrorist a far higher chance of being mistakenly released as a civilian in a military status hearing and an exponentially higher chance of being released under the standards of a civilian habeas corpus hearing.

Thus, on balance, our war crimes system provides no disincentive to a terrorist to disguise himself as a civilian and every incentive to do so. This is why al Qaeda trains its members to lie about their true status.

On the question of the preferred method of dealing with spies and saboteurs during WW2, the UK solution was to have civilian trials - it was considered important not to have anything which smacked of militarism.

The Treachery Act 1940 conferred jurisdiction on the civil courts to try offences of spying and sabotage (it was then repealed in 1945).

The records of Wandsworth Prison show 11 wartime executions by hanging of spies (2 British, the remaining foreign) under the Treachery Act and 2 executions under the Treason Act both high profile - Jon Amery, the son of a Cabinet Minister who had supported the Nazi cause and William Joyce, Lord Haw Haw, who had dual US-British nationality.

All were tried at the Central Criminal Court ("the Old Bailey").

One German Sergeant who parachuted into the UK was not hanged but was shot by firing squad at the Tower of London, the last person in history to be executed at the Tower.

In this marketplace, ideas compete against one another to determine which have merit and which do not.

One determines the merit of an idea by testing its factual premises and end results. All ideas should be politely but firmly tested. That is the purpose of a comment section on a blawg.

One would think that academics and lawyers would seek to have their ideas challenged to refine them by eliminating exposed error. However, that does not always appear to be the case. Some appear to be more afraid of having their egos bruised than to have their intellects refined.

Perhaps I am odd, but I enjoy challenging ideas which I believe to be in error and to refine my ideas by submitting them to the challenge of those who disagree.

I'm not sure we can discuss this except at cross purposes. There is a fundamental difference in thinking when it comes to what a law (at least the Geneva Conventions) is. Where I see a social compact to act in a humane way that preserves human dignity as an inherent right, you see a system of rewards and punishments. I am beginning to understand why Philippe Sands' interview with Douglas Feith took the turns it took, and why Sands ended up so frustrated.

No, humane treatment is not just a word in a clause in Article 3. The whole set of 4 Conventions and 3 additional protocols is about humane treatment. I don't know any other way to put that, it has to do with extremely fundamental humanitarian principles.

As for your statements about "terrorists", you are aware, I assume, since you seem to have so much interest in this topic, that there is no internationally recognized definition of that word "terrorist". That problem isn't solved by simplistic U.S. sound bite length definitions one sees cited and quoted all over the media and the internet. The term is basically used as a dehumanization or demonization. And that is why use of Geneva to create a system for punishing terrorism by harsh detention is doubly wrong. It's wrong because Geneva is not about harsh detention, and it's wrong because the word terrorist becomes simply "person with no rights", or "person against whom a military can be used without regard to current circumstances". Geneva has nothing to do with the concept of a person with no rights.

When you make a short, to-the-point post and someone leaves a comment that is two or three times as long as the original post, filled with repetitious talking points that have been debunked over and over again, it can't be pleasant, but there isn't a real cure, so far as I can see.

I think you worry too much about the signal-to-noise ratio. We readers are either adept at filtering -- or we need to learn to be.

I read this blog not for the legal arguments, filled with cites and legal reasoning, but for the philosophy and insight. And the entertainment, which is provided by all. When I find something asserted that seems wrong, I'll search out an answer, thereby becoming more knowledgeable.

I've done my share of Bart-baiting, but I've tried to adhere to the above rules. I think I'm getting better at it.

I also appreciate the occasional long, detailed comments from others -- absent the ad hominem -- on occasion, but, not being a lawyer, I'm not really equipped to evaluate the legal issues.

I even appreciate Bart's comments, as a source of amusement, or blood-pressure enhancement, or a reminder of how a person, who appears seriously deficient in empathy, would view these issues. Giving us a different viewpoint, indeed.

It doesn't take long, given Bart's penchant for weighing in on things other than the law, for an observer to note that he's a BS artist. The fear that any of his unanswered BS may take root is misplaced.

I suggest simply pointing out (as suggested above, tersely, with good humor, and without ad hominem) the more egregious errors and then let matters take their course.

Bart, I'm not sure we can discuss this except at cross purposes. There is a fundamental difference in thinking when it comes to what a law (at least the Geneva Conventions) is. Where I see a social compact to act in a humane way that preserves human dignity as an inherent right, you see a system of rewards and punishments. I am beginning to understand why Philippe Sands' interview with Douglas Feith took the turns it took, and why Sands ended up so frustrated.

:::chuckle:::

I think your comparison of our discussion and the Sands' interview is apt. Feith and I have different world views from you and Sands. Thus, we often talk past one another.

I see your viewpoint as aspirational rather than a statement of the actual intent of the GCs. I understand your argument, but I just do not believe that your approach is wise. We will have to agree to disagree.

I would note, though, that a social compact is an agreement by a people to follow certain norms. I do not believe that the United States shares a social compact with foreign enemies any more than it shares the Constitution with them.

As for your statements about "terrorists", you are aware, I assume, since you seem to have so much interest in this topic, that there is no internationally recognized definition of that word "terrorist". That problem isn't solved by simplistic U.S. sound bite length definitions one sees cited and quoted all over the media and the internet.

I was also puzzled why the President decided upon the euphemism of "War on Terror" (WOT), which when taken literally is a war on a technique rather than an enemy. Doug Feith explained the reasoning in his recent book. WOT was not meant as a marketing term. Rather, the Administration was uncertain how to adequately identify the enemy. al Qaeda and its allies are a loose federation of shadowy terror groups that often change their names. The Administration was concerned that, if it named one group as the enemy and that group changed its name, then the its legal and popular authority to continue the war might be challenged. Thus, it was decided to use the broad term WOT to encompass the entirety of the enemy.

BTW, history has proven that this concern about nitpicking at the war authority was well founded as shown by the absurd argument offered in opposition to the Iraq War that al Qaeda in Iraq was not really al Qaeda because it did not consist of the original group which launched 9/11.

I was also puzzled why the President decided upon the euphemism of "War on Terror"

You were probably the only one puzzled by it. For many people it was obvious why he did it, he wanted an excuse for war with Iraq, and probably worse things after that. The only good thing to come out of the disaster in Iraq is that he's not going to get a chance to make it worse.

BTW, history has proven that this concern about nitpicking at the war authority was well founded as shown by the absurd argument offered in opposition to the Iraq War that al Qaeda in Iraq was not really al Qaeda because it did not consist of the original group which launched 9/11.

# posted by Bart DePalma : 3:35 PM

No, there has been nothing more absurd than the claims by warmongering assholes that the creation of Al Qaeda in Iraq justified the invasion that created Al Qaeda in Iraq.

In any case, Al Qaeda in Iraq does not help your argument. You claim Bush declared war on terror instead of Al Qaeda because he feared that Al Qaeda would just change it's name. Instead, other groups are forming under the Al Qaeda franchise. The fears that Al Qaeda would change it's name were unfounded. The exact opposite happened. That seems to be a pattern with assumptions made by you idiots.

Mr Lederman, as a dedicated lurker quite familiar with "Bart" at this and Mr. Greenwald's blog, and in particular in respect to his comment @ 7:01 on this thread, I don't think you can ignore that "Bart's" sole purpose is to taunt, disturb, and disrupt, without legitimate purpose or understanding, any substantive development of reasonable discourse. This is the same course of events, with nearly the exact structure and outcome, that occurred over at Glen's blog. Personally, it seems fairly clear to me that "Bart" in some pathological way needs to be abused, and this is precisely what I'm seeing played out here, again. I read this blog and its comments for content and demeanor rarely available on the web, for deeply informed analysis and comment of issues fundamental to this country's continued health and functioning. I do not envy yours or Mr. Balkin's position, but I'd just like to reiterate that "Bart's" true game is much, much more one of disordered psychology than of legal philosophy and opinion. Perhaps a second comment thread could be started so when commenters such as "Bart" go off the rails, there's a less rigorous forum for their musings.

Perhaps a second comment thread could be started so when commenters such as "Bart" go off the rails, there's a less rigorous forum for their musings.

It's called "Bart's blog". There he has perfect freedom to repeat his assertions ad nauseam untrammeled by any requirement for truthfulness or logic, and with no aim to foster actual discussion if such is not his wont. He should be 'encouraged' to go do that ... by force (of the sysadmin kind) if necessary. "Bart" is no fan of diplomacy or conciliation. Such force is probably the only language he understands.